The government is acting outside of established constitutional conventions

Jul 05, 2020 Features / Columnists, Peeping Tom

The government should not be selling any lands. It has long gone beyond being a caretaker administration and is merely in a holding mode until a new government assumes office. It therefore should not be making agreements which would bind any incoming regime.
The sale of lands by NICIL is outside of the constitutional conventions guiding the work of regimes holding the fort until a new government assumes office. The sale of lands constitutes an agreement which binds a new administration and therefore falls outside of established constitutional conventions.
The Alliance For Change, a member of the ruling APNU+AFC government, in its weekly column in this newspaper of July 21, 2019 had pointed to the scope of constitutional conventions of a caretaker regime.
Among the conventions, the AFC identified were those which required that the government avoids: 1) Making major policy decisions that are likely to constrict an incoming government; 2) Making significant appointments and 3) Entering into major contracts or undertakings.
The AFC had argued that, “Government should avoid making major policy decisions during the caretaker period that are likely to commit an incoming government…. Relevant considerations include the impact of the policy on national resources…
The caretaker conventions also apply to the making of decisions, not to their announcement. Where possible, decisions should be announced ahead of the dissolution of Parliament. Care should be taken to ensure that national resources are not used to make announcements that involve partisan activities.”
In relation to making significant appointments, the AFC said “The sitting governments should defer making significant appointments during the caretaker period. When considering the advice it would give on whether an appointment qualifies as ‘significant’, the agency should consider not only the importance of the position, but also whether the proposed appointment would be likely to be controversial.
If deferring the appointment is impracticable, usually for reasons associated with the proper functioning of an agency, there are several options:
• the Minister could make an acting appointment where permissible
• the Minister could make a short term appointment until shortly after the end of the caretaker period;
• If those options are not practicable, the Minister could consult the relevant Opposition spokesperson regarding a full term appointment.”
In relation to the entering into major contracts, this is what the AFC had to say: “Governments should avoid entering major contracts or undertakings during the caretaker period. When considering whether a contract or undertaking qualifies as ‘major’, agencies should consider the dollar value of the commitment and also whether the commitment involves a routine matter of administration, or whether it implements or entrenches a policy, programme or administrative structure which is politically contentious. A further consideration is whether the commitment requires ministerial approval. If it is not possible to defer the commitment until after the caretaker period for legal, commercial or other reasons, there are a number of options. The Minister could consult the relevant Opposition spokesperson regarding the commitment; agencies could also explain the implications of the election to the contractor; and ensure that contracts include clauses providing for termination in the event of an incoming government not wishing to proceed. Similarly, in the case of tenders, agencies should warn potential tenderers about the implications of the election and the possibility that the tender might not be completed.”
The AFC’s intention in its column of 21st July 2019 was to argue that a caretaker government retained its full panoply of powers. It did not realize that in pointing out certain limitations, it was defeating the very argument which it was attempting to make.
The Granger administration is not a caretaker government any longer. That status ended on elections day. It is now merely a holding administration until a new government assumes office and so it ought to exercise far greater restraints than a caretaker administration.
Anil Nandlall in a letter titled “Text cited by CCJ identifies broad restraints on caretaker gov’t” had noted that the source of CCJ decision had identified a caretaker government as being limited to: “… ‘in matters of policy, expenditure and appointments’, the Government should restrict itself to ‘activity that is: (a) routine, or (b) non-controversial, or (c) urgent and in the public interest, or (d) reversible by a new government without undue cost or disruption, or (e) agreed upon by the Opposition (in those cases where consultation is appropriate’) ”.
One hardly therefore needs any further argument that the Granger administration has been acting outside of the established constitutional conventions governing the conduct of a caretaker government.
The sale of lands and the promotion of an officer of the Guyana Defence Force are outside of the established constitutional conventions governing caretaker and holding regimes. The incoming government is under no compulsion to respect these agreements and appointments and those benefitting or entering into such arrangements ought to be aware that they do so at their own peril.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)